Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1887-12-18

doctrine, however, that more than one
oHense Lay be committed by
q man in one transaction. We
ere Of the opinion, however, that
under the facts of this case, to wit: that
appellant was convicted ss principal for
the burglary, such conviction is no bar 10
an Indictment for conspiracy to commit
the same burglary, aud that there Gss no
error in sustaining the District Attorneys
motion to strike out the pies No error.
Affirmed. Hurt, j.
William Neiderluck alias Miller VS.. the
state; appeal from Bexsr. This il
companion case TO that OF Whilford vs..
State, decided above, and the points there
IN decided, are decisive of this case.
There was no error. Affirmed. Hurt, J.
Henry Shamburger VS.. the State; ap-
peal from Kaufman. On the trial the
State, over objections of appellant, read
in evidence 10 the jury tie order Of the
District court of Hunt county
changing the venue. This order
recites thst there exists such p preiu-
dice against defendant in Hunt county
that he cannot get z fsir trial, thst there
Is combination Of influential persons
against him, etc. Held: Error. It
vas not mstter of evidence for the
jury, but the Judge alone. Even an in
1oTmation or indictment csnnot be
used as eviderce in 9 criminal csse of the
facts charged therein. The admission of
ms order was calculated TO prejudice the
rights OF defendant, and thus prob
ably 'deiest the very purpose for which
a change of venue was granted.
The court charged: "If from the evidence
you believe that Anna Smith took her
Own life, that the fatal shot which de
priyed her of life was not fired by defend
ant, but by her own hand or by suy other
means than the act Of the
defendant, then he is not
guilty, and you should 50 find ~
He'd: Erroneous, because it puts the
burden OF proof upon defendant to prove
his Innocence. Reversed and remsnded
Wilson, J.
Gulf, Colorado and Santa Railway Com
pany VS.. II. F. Sumrow; appeal from
Hunt. In proving dsmsges to INSURED
but ungsthered cotton crop, in order 10
damage, il WAS competent to prove
have made when gathered, ginred and
baled, three average bales, and that the
market value OF said three bales would
gathering, ginning and balipg, which
Where suit originates in !
justice court and an appeal
to the County court the Judgment is fsr
less than In Justice court, and she case
is appealed to this court. Held: 1t wss
error TO adjudge the costs of the County
court against appellant, there being no
N % ~
Reversed and remended. Wilson, J.
J. +. O'CODner Co. vs. T. II. Smith;
appeal from Rockwau county Appel
lGnts plea OF privilege to De sued IN the
county Of their residence Wes IN due form
and was fully supported and not COR
troverted by the evidence Held:
The court erred in fading against said
plea. 1t appears from the evidence that
there existed no priyity Of contract be-
tween sppeliee ard appellants with re-
spect TO the cause Of action Held
were not liable. Reversed sud
dismissed. WlIeop, j.
W. f. Willis vs. the State; appeal from
Knox county. This is an appeal from
conviction for theft. There is no state
menC Of facts IN the record, but there is 5
bill OF exceptions in the record which
shows that the evidence was that the
alleged stolen horse was the property Of
NJ. j. and not U. J. Smith, 30 alleged
in the indictment. Held: The name Of
the owner of the property must be proved
as alleged. The given name may be stated
by its initials, and variance between the
middle initial letter as alleged snd
as proved will be inmate .
rial, but if the variance as TO the first mi
tial letter of the given name it will be
fatal unless the proof shows that the
owner WAS known as we'll by the name
alleged as by the name proved. Reversed
and remanded. Wilson, J.
Tom Gentry vs.. the Stste; appeal from
Falls county. The court in its charge di-
rected the jury ''to find the defendant
guilty, If he and Homer Smith were aCt-
ing together, frauduleltly and the horses
were taken by either of them. He'd,
The charge is erroneous. 1t should
have explained that to constitute the de-
fendant principal in the theft he must
have taken the horses himself, or must
have acted together with Homer Smith
in committing the theft, knowing at the
time the fraudulent intent OF
seld Smith, and il not present
with Smith at the time Of the
commission Of the theft by said Sul-1,
must have been acting with him e. the
very time of the commission of ESD theft
In pursuance OF q common design sXl-t-
ing between them TO commit the theft
Reversed and remanded. Wilson, j.
D. Foley vs. Sing, q Chinamen appeal
from Taylor county. II defendant in
error sustained damage because f hsy-
ing on insufficient fence around his gar
den, it clearly appears from the evil
dence that it was his own f2uL
that he did not have fence sufficient to
protect his crop. The verdict snf idg
ment against plaintiff in error, th5lei9Te
was clearly wrong. Il reversed and re-